Am I alone in thinking that statutes of limitations are a bit flawed?
In what way?
They seem to allow people to get away with serious crimes if they can conceal them long enough or there is a delay in evidence getting to the correct people.
Am I alone in thinking that statutes of limitations are a bit flawed?
In what way?
They seem to allow people to get away with serious crimes if they can conceal them long enough or there is a delay in evidence getting to the correct people.
With the caveat that laws vary from jurisdiction to jurisdiction, in many jurisdictions, statutes of limitations for crimes that can remain concealed or undetected for some period of time often do not begin to run until the crime is discovered.
And often there is no statute of limitations for more serious crimes, such as murder. In the state where I live, there are no statutes of limitations for any felonies.
It’s always, I think, a call of trying to find the right balance of making sure crimes are prosecuted promptly, both out of governmental interest and to protect rights of the accused, and of not letting people get away with serious crimes.
Am I alone in thinking that statutes of limitations are a bit flawed?
In what way?
They seem to allow people to get away with serious crimes if they can conceal them long enough or there is a delay in evidence getting to the correct people.
With the caveat that laws vary from jurisdiction to jurisdiction, in many jurisdictions, statutes of limitations for crimes that can remain concealed or undetected for some period of time often do not begin to run until the crime is discovered.
And often there is no statute of limitations for more serious crimes, such as murder. In the state where I live, there are no statutes of limitations for any felonies.
It’s always, I think, a call of trying to find the right balance of making sure crimes are prosecuted promptly, both out of governmental interest and to protect rights of the accused, and of not letting people get away with serious crimes.
Your last paragraph is the first time I've ever heard any argument to justify the existence of a statutes of limitations. I may be wrong, but I believe there are no such statues of limitations in English law.* The idea that a crime begins to not matter after a period of time is one that on the face of it seems wrong both morally and from a public policy point of view. (I think* in England and Wales that the Crown Prosecution Service has discretion on this rather than any specific legal limitations). That does not mean it is, of course, there may well be good arguments for them. Although, I have yet to hear anyone argue convincingly for them. Having followed the various judicial adventures of Mr Trump, it is very clear that they can be abused if you have sufficient resources.
In terms of the specifics. It is noteworthy that SCOTUS has gutted bribery legislation in recent years but if the alleged facts are correct then even this Court would admit this counts as a bribe. Moreover, there is reason to think there was significant corruption within the Department of Justice that prevented this matter being taken further. However, I strongly suspect that it is all a legal dead-end and this cannot be prosecuted. That would not (and should not) prevent the House of Representatives from investigating it though!
AFZ
*I am definitely not a lawyer... happy to be corrected.
Statutes of Limitation are certainly open to the possibility of abuse, but may be framed so as to allow for proceedings in some way if there has been deliberate concealment. But they can also be a realistic recognition of the fallibility of memory over time, as well as enabling closure. So if I accidentally injure you through my negligence then (UK law) you basically have three years to take action. Once that time has passed, if you’ve not taken action against me, I can reasonably believe you’re not going to, and can get on with my life. You can’t then come back and sue me 20 years down the line.
The UK has no statute of limitations for indictable (basically major) crimes.
I don’t see why the decision can’t just be taken on the quality of the evidence though ? Witnesses no longer remember - then you can’t put them on the stand etc. Things like cctv footage or dna evidence may - nowadays - turn up after a considerable span of time.
I suppose one function of a statute of limitations is to prevent harassment of the people by the government.
For example, the Indian government recently made moves to prosecute Arundhati Roy for remarks she made over fifteen years ago about the India-Pakistan conflict over Kashmir.
Well, they shouldn't be going after her for those remarks at all, but the problem is compounded of the police can decide not to prosecute and then decide to prosecute after all.
There’s also the issue of a defendant, who is deemed innocent until proven guilty, being able to gather evidence for a defense after a prolonged length of time. As just one example, a defendant might have an iron-clad alibi, but will they remember it 20 years later, or still have access to a calendar or anything (or anyone) else that will help them remember? How many of us could answer the question “What were you doing on the evening of August 7, 2004?”
The reality is that the longer after the act, the harder it can be for the prosecution to gather sufficient evidence for proof beyond a reasonable doubt, and the harder it can be for a defendant to mount an adequate defense.
Criminal statutes of limitation have nothing to do with crimes ceasing to matter after a defined period of time, and the fact that a statute of limitations has run in no way means a crime doesn’t matter. It means the likelihood of a trial that is fair both to the public and to the defendant has been compromised to such an extent that the trial and conviction themselves could be unjust.
And again, I note that criminal statutes of limitations, in those jurisdictions that have them, often don’t apply to more serious crimes. There, a decision has been made that the severity of the crime may outbalance the risk of compromise to a trial fair to all parties.
I agree with Nick's observation in his first paragraph. I have noticed, however, that few people think of this when discussing the trials of accused nonagenarians as Nazi prison guards. Justice delayed is justice denied, and it works both ways.
It seems to me that a jury, presented with the evidence (or lack of it) can decide whether the passing of time impedes the ability to prove "beyond reasonable doubt". I also think, in a world where it's often easier to prove a lesser charge, that shutting off avenues for achieving some justice rather than none is counter-productive.
And again, I note that criminal statutes of limitations, in those jurisdictions that have them, often don’t apply to more serious crimes. There, a decision has been made that the severity of the crime may outbalance the risk of compromise to a trial fair to all parties.
I have noticed, however, that few people think of this when discussing the trials of accused nonagenarians as Nazi prison guards. Justice delayed is justice denied, and it works both ways.
Does the Holocaust count as a "serious crime"? Views differ!
It seems to me that a jury, presented with the evidence (or lack of it) can decide whether the passing of time impedes the ability to prove "beyond reasonable doubt". I also think, in a world where it's often easier to prove a lesser charge, that shutting off avenues for achieving some justice rather than none is counter-productive.
This, along with identification evidence, tends to be something juries are not good at (not to mention most witnesses estimates of speed or distance).
I don’t know, say Hitler had survived and was discovered living in the outback. All you’d really need to prove would be his identity and as he has blood relatives in New York you’d just need a dna test for that.
It seems to me that a jury, presented with the evidence (or lack of it) can decide whether the passing of time impedes the ability to prove "beyond reasonable doubt".
Should it also be left to a jury to decide whether the passing of time has impaired a defendant’s ability to mount a defense? And if so, exactly how would that work?
It seems to me that a jury, presented with the evidence (or lack of it) can decide whether the passing of time impedes the ability to prove "beyond reasonable doubt". I also think, in a world where it's often easier to prove a lesser charge, that shutting off avenues for achieving some justice rather than none is counter-productive.
This, along with identification evidence, tends to be something juries are not good at (not to mention most witnesses estimates of speed or distance).
I would agree.
A jury’s role is to (attempt to) determine what the facts are, to determine what happened, based on the competent evidence actually presented. Part of that can include assessing the credibility of witness testimony years or decades later. But it’s not a jury’s role to try to guess what no-longer-available evidence might have been, or what effect it might have had on their verdict.
I don’t know, say Hitler had survived and was discovered living in the outback. All you’d really need to prove would be his identity and as he has blood relatives in New York you’d just need a dna test for that.
Nope. You’d also need to prove, through competent evidence—witnesses or admissible documents—and not just through what we all know from the history books, that he actually committed all the elements of the crimes with which he was charged.
I don’t see why the decision can’t just be taken on the quality of the evidence though ? Witnesses no longer remember - then you can’t put them on the stand etc. Things like cctv footage or dna evidence may - nowadays - turn up after a considerable span of time.
People are quite bad at judging the quality of the evidence. Witnesses, for example, are prone to misremembering details, and even synthesizing entirely false memories, but thinking that their memories are accurate.
DNA evidence might indeed turn up after a considerable passage of time. Generally this would be a sample taken at the time matching to a new sample that has been submitted to the database - either the criminal themselves or a relative having been subsequently arrested and samples taken.
CCTV? I'd be rather suspicious of CCTV evidence that didn't exist at the time, but surfaced a decade or two later. Chain of custody issues with regard to such evidence look challenging to say the least.
CCTV? I'd be rather suspicious of CCTV evidence that didn't exist at the time, but surfaced a decade or two later. Chain of custody issues with regard to such evidence look challenging to say the least.
In Canada we’ve got a 6-month limitation for charging most summary conviction offences (which can be waived on consent e.g. in the context of a plea bargain). A large number of offences are hybrid which means that if the Crown wants to proceed after 6 months they need to proceed by Indictment which is significantly more complicated procedurally… what it means is that the Crown generally won’t prosecute a hybrid offence more than 6 months old unless it’s relatively serious.
I think the bottom line is a recognition that not every offence is so serious that it needs to be prosecuted long after the fact… if the accused has stayed out trouble in the meantime, there’s a diminished public interest in proceeding on a less serious offence, and if they haven’t stayed out of trouble chances are decent they’ve gotten themselves charged with something else in the meantime.
Anecdotally I find that many witnesses’ memories fade alarmingly quickly. Depends on how memorable the events were, of course, and also on whether they took contemporaneous notes. Given the burden of proof I think poor memory generally works more often against the prosecution than the defence. Even if the witness is found to be credible doubts about reliability are often fatal to proof beyond reasonable doubt.
Hitler would now be 135 years old. Find a more plausible example.
If you put someone in his/her 90s on trial for crimes from 80 years ago, there would be very little to work with: no DNA evidence from that period, grainy black and white photographs, maybe some handwriting, and testimony from similarly old witnesses. How good do you expect your memory to be in your 90s (if you last so long)?
It might be better to debate charging someone with a war crime from the Vietnam war, a mere 55 years ago.
Obviously, its orders of magnitude more difficult over time to build a case. But I don’t think it is impossible and I think it is more sensible to rule on the quality of the evidence available at the time of the prosecuting decision than an arbitrary deadline.
There’s also the issue that you are basing your statue of limitation on evidentiary technologies available now. We don’t know what we will develop in the future. We see cold cases successfully prosecuted now in the UK that are decades old due to dna advances that weren’t really imagined when the evidence was originally stored.
Hitler would now be 135 years old. Find a more plausible example.
OK a.n.other influencer on social media, 20years old, now inciting racial hatred resulting in arson that kills people somewhere in the UK at the same sort of scale as the Grenfell fire. They go on the run and don’t get located and extradited for 70 years.
Hitler would now be 135 years old. Find a more plausible example.
OK a.n.other influencer on social media, 20years old, now inciting racial hatred resulting in arson that kills people somewhere in the UK at the same sort of scale as the Grenfell fire. They go on the run and don’t get located and extradited for 70 years.
In which case, the statute of limitations would typically be tolled until extradition—meaning if the statute of limitations is five years and the social influencer goes on the run at one year, the clock is stopped. Then upon extradition, the clock starts back up and prosecutors would have four years to bring the case. So in this example, the statute of limitations typically wouldn’t preclude prosecution.
OK let’s just imagine they stayed in the uk under a false identity and weren’t discovered for this length of time. My point being that evidence can be gathered now and stored, in a way that maybe robust.
OK let’s just imagine they stayed in the uk under a false identity and weren’t discovered for this length of time. My point being that evidence can be gathered now and stored, in a way that maybe robust.
Quite possibly the same result with regard to tolling. My point is that examples being offered to demonstrate why the passage of time shouldn’t preclude prosecution are examples where statutes of limitation probably wouldn’t preclude prosecution.
I think there's also a point about justice for victims. There's a case in the news at the minute here about a family who were renovating their house and found the skeleton of a baby under the floorboards. Initial analysis suggests that (s)he died about 100 years ago. Even though they know there's no chance of prodecuting anyone, French police are still trying to investigate because they think they owe it to the poor baby to find out who killed him/her.
Intriguingly the limitations of evidence and the risk of a miscarriage of justice applies far more to 'serious crimes' that don't tend to have a statute of limitations.
If we are talking about bribery or falsification of business records or fraud - to pick three examples - these are crimes which tend to create a significant paper trail.
Hypothetically, if one is prosecuting fraud ten or even twenty years down the line, it may be very easy to demonstrate the facts of the case from the records that exist. Depending on the statute, there may be a need to demonstrate intent but that is an inference that juries are used to drawing and the quality or otherwise of the testimony of eye witnesses is rarely a factor.
Which brings me back to my conclusion. I think prosecuting authorities should have discretion on this: i.e. weighing up the likelihood of conviction with the quality of evidence they now have before deciding to proceed. A legally defined cut-off is not needed. Some rules around how prosecuting authorities handle this and ensuring they inform the accused when a decision is made not to proceed is important but I think more just that a statue of limitations.
There’s also the issue of a defendant, who is deemed innocent until proven guilty, being able to gather evidence for a defense after a prolonged length of time. As just one example, a defendant might have an iron-clad alibi, but will they remember it 20 years later, or still have access to a calendar or anything (or anyone) else that will help them remember? How many of us could answer the question “What were you doing on the evening of August 7, 2004?”
Criminal statutes of limitation have nothing to do with crimes ceasing to matter after a defined period of time, and the fact that a statute of limitations has run in no way means a crime doesn’t matter. It means the likelihood of a trial that is fair both to the public and to the defendant has been compromised to such an extent that the trial and conviction themselves could be unjust.
Spot on. A real problem is if the person, said to be the victim of the supposed crime, has been dwelling on it for years. How reliable could that evidence be? Probably largely unreliable, and that poses problems for both the prosecution and the accused.
The question is not just whether comparatively well-resourced prosecution authorities can make a good case, but also whether a potentially innocent, and probably under-resourced individual defendant can gather evidence they need in order to mount a defence.
Many of the critiques of statutes of limitations so far made seem to be based on the assumed guilt of the defendant.
Here in the UK, the Post Office Horizon scandal shows how hard it can be for an individual to mount a defence even in relation to recent events. The passage of time for a potentially unsuspecting individual can only make things worse.
There’s also the issue of a defendant, who is deemed innocent until proven guilty, being able to gather evidence for a defense after a prolonged length of time. As just one example, a defendant might have an iron-clad alibi, but will they remember it 20 years later, or still have access to a calendar or anything (or anyone) else that will help them remember? How many of us could answer the question “What were you doing on the evening of August 7, 2004?”
Criminal statutes of limitation have nothing to do with crimes ceasing to matter after a defined period of time, and the fact that a statute of limitations has run in no way means a crime doesn’t matter. It means the likelihood of a trial that is fair both to the public and to the defendant has been compromised to such an extent that the trial and conviction themselves could be unjust.
Spot on. A real problem is if the person, said to be the victim of the supposed crime, has been dwelling on it for years. How reliable could that evidence be? Probably largely unreliable, and that poses problems for both the prosecution and the accused.
Indeed but as I said above, I think it is not a convincing argument for a strict cut off so much as sensible discretion on the part of prosecutors and the courts. Especially as the kind of crimes that don't have a Statue of Limitations are often the ones most likely to depend on witness testimony whilst many of the ones that do are very much 'documents cases.'
Indeed but as I said above, I think it is not a convincing argument for a strict cut off so much as sensible discretion on the part of prosecutors and the courts.
Prosecutors already abuse their discretion all too frequently. It seems reasonable to give the state a time limit on deciding whether or not to bring a prosecution, especially for minor offenses. At a certain point deciding to devote resources to a twenty year old jaywalking case is a misuse of authority.
There’s also the issue of a defendant, who is deemed innocent until proven guilty, being able to gather evidence for a defense after a prolonged length of time. As just one example, a defendant might have an iron-clad alibi, but will they remember it 20 years later, or still have access to a calendar or anything (or anyone) else that will help them remember? How many of us could answer the question “What were you doing on the evening of August 7, 2004?”
Criminal statutes of limitation have nothing to do with crimes ceasing to matter after a defined period of time, and the fact that a statute of limitations has run in no way means a crime doesn’t matter. It means the likelihood of a trial that is fair both to the public and to the defendant has been compromised to such an extent that the trial and conviction themselves could be unjust.
Spot on. A real problem is if the person, said to be the victim of the supposed crime, has been dwelling on it for years. How reliable could that evidence be? Probably largely unreliable, and that poses problems for both the prosecution and the accused.
Many of the really old cases I see in the criminal appeal reports are appeals from conviction for historical sex assaults committed by adults against vulnerable minors. I’m not sure that assumption is valid in such cases.
There’s a lot that can be said about issues with prosecuting historical offices, but as a starting point I think it’s good to remember that we don’t even get to the issue of the accused’s being able to defend themselves unless the prosecution can establish a case that would otherwise meet the standard of proof beyond reasonable doubt. And passage of time can present challenges on this point even with the ordinary delay from charge to trial never mind in cases where charges are laid long after the offences are alleged to have happened. The prosecution has to prove its case beyond reasonable doubt; the accused doesn’t have to prove anything. The burden and standard of proof doesn’t really change with the passage of time but the prosecution’s ability to meet that burden and what will reasonably be expected of the defence to undermine that case can be expected to change dramatically.
I think @Marsupial has summed it up very well. There is an in built protection for defendants inherent in the fact that the burden of proof is with the prosecution.
@Crœsos there are differences in how prosecutional discretion works in the UK compared to the US but I take the point. However, I also feel no one should be prosecuted for Jay Walking* anyway but bribery - to pick an offence at random - is a very different matter...
AFZ
*I think I may have committed this offence in San Francisco over a decade ago. I crossed the road as I have done all my life, forgetting that the law is different. I am not sure on California law but fortunately, I had no reason to find out as I was neither apprehended nor ran over...
Hitler would now be 135 years old. Find a more plausible example.
OK a.n.other influencer on social media, 20years old, now inciting racial hatred resulting in arson that kills people somewhere in the UK at the same sort of scale as the Grenfell fire. They go on the run and don’t get located and extradited for 70 years.
What's to be gained by prosecuting a nonagenerian for something that happened seven decades ago?
I think @Marsupial has summed it up very well. There is an in built protection for defendants inherent in the fact that the burden of proof is with the prosecution.
@Crœsos there are differences in how prosecutional discretion works in the UK compared to the US but I take the point. However, I also feel no one should be prosecuted for Jay Walking* anyway but bribery - to pick an offence at random - is a very different matter...
AFZ
*I think I may have committed this offence in San Francisco over a decade ago. I crossed the road as I have done all my life, forgetting that the law is different. I am not sure on California law but fortunately, I had no reason to find out as I was neither apprehended nor ran over...
And the SFPD has been looking for you ever since that incident.
I think @Marsupial has summed it up very well. There is an in built protection for defendants inherent in the fact that the burden of proof is with the prosecution.
@Crœsos there are differences in how prosecutional discretion works in the UK compared to the US but I take the point. However, I also feel no one should be prosecuted for Jay Walking* anyway but bribery - to pick an offence at random - is a very different matter...
AFZ
*I think I may have committed this offence in San Francisco over a decade ago. I crossed the road as I have done all my life, forgetting that the law is different. I am not sure on California law but fortunately, I had no reason to find out as I was neither apprehended nor ran over...
And the SFPD has been looking for you ever since that incident.
Hitler would now be 135 years old. Find a more plausible example.
OK a.n.other influencer on social media, 20years old, now inciting racial hatred resulting in arson that kills people somewhere in the UK at the same sort of scale as the Grenfell fire. They go on the run and don’t get located and extradited for 70 years.
What's to be gained by prosecuting a nonagenerian for something that happened seven decades ago?
I think the victims (or their relatives) might well feel something had been gained.
Hitler would now be 135 years old. Find a more plausible example.
OK a.n.other influencer on social media, 20years old, now inciting racial hatred resulting in arson that kills people somewhere in the UK at the same sort of scale as the Grenfell fire. They go on the run and don’t get located and extradited for 70 years.
What's to be gained by prosecuting a nonagenerian for something that happened seven decades ago?
The deterrent effect of the law is highly dependent on the law being enforced.
I've only had time to add anything to this thread now, but having spent my working law practicing law, this is something I've thought about quite a lot over the years. My apologies if this is a bit long.
The first thing I'd say is that limitation is essential to the working of civil law, i.e. law as between individuals. One of its main, and thoroughly laudable aims is to ensure that people can't sit on their possible claims for years and drag old claims out of the woodwork. If you've got a claim, you are required to bring it promptly. If you don't, you lose the right to do so. I'd be surprised if anyone disagrees with that.
The question I'm assuming is being discussed here is how far that should apply to criminal proceedings. Practice on this varies between jurisdictions. Your own view might also be affected by what you think the criminal law is supposed to do. To what extent is it there to get people to behave themselves, to deliver justice for individuals, or even to express some abstract sense of justice that is the responsibility of the state?
"It’s always, I think, a call of trying to find the right balance of making sure crimes are prosecuted promptly, both out of governmental interest and to protect rights of the accused, and of not letting people get away with serious crimes."
I think that's well put. I was really quite surprised by @quetzalcoatl's,
"Your last paragraph is the first time I've ever heard any argument to justify the existence of a statutes of limitations."
As people have already pointed out, even in jurisdictions like England and Wales which don't have any general limitation for criminal proceedings, you are likely to find that there will be some more trivial crimes which lapse or where the prosecution has to tell you whether you are going to be prosecuted within a period of time.
Even for serious criminal cases, though, I think England and Wales should have some sort of limitation. Justice is badly served by its absence. This has been particularly so in recent years when there has been quite a plethora of cases which the police have felt obliged to take up, investigate and in due course take to court, where the first they've heard of the allegation is a complaint by somebody about something which they claim happened 30, 40 or even 50 years ago. However serious the wrong they're complaining about, after that length of time, the evidence is pretty well bound to be duff. Even if it isn't, if they've sat on their hands for so long, there's a good argument that however hard that might be, they should have to put up with it. And if the accused is presumed to be innocent, it's hardly fair to them to expect them to answer questions convincingly about something which, if they are innocent, they know nothing about and never happened.
If a person thinks they have suffered a crime, they should assume they have to make their complaint at the time.
The three exceptions I'd make to this, and I think they're probably the only ones, are,
- First (and this isn't an exception), if the victim made their complaint promptly but the criminal disappears, bolts abroad or the crime languishes unsolved for years, time should not run in the criminal's favour.
- Second, I don't think time should start to run for an undiscovered crime until it's discovered, as with the story recently on R4 about the Danish antique dealer who discovered a trail of evidence that appears to demonstrate a series of thefts over time from the British Museum by an employee. and
- Third, there should be no limitation for murder. The victim is dead and so obviously can't be put under an obligation to make their complaint promptly.
So, as a practical example, if England and Wales were to follow my suggestion, and if Lord Lucan should be alive and turn up, he wouldn't be able to claim limitations either under 1 or 3.
I really, really, really don't agree with the suggestion that whether or not to bring stale prosecutions should be left to the 'wise' discretion of the state or its agents.
Re. limitations in civil proceedings, obviously they exist, but the law can be very complicated. If you want to make your brain hurt the Ontario Limitations Act is at your disposal. Interestingly section 16 of the Act creates a number of general exceptions including for civil actions relating to sexual assault and a number of other forms of sexual misconduct.
As I said in my last post, sexual abuse especially of minors form a large proportion of the historical cases that make it into the law reports. I think most people would agree it's unrealistic to expect a 12-year-old who is being abused by a family member to promptly report the abuse to police. And more generally, it's now generally accepted in law that victims can take a long time to be emotionally and psychologically ready to report sexual assaults. I don't see any principled way of building a limitation period that accommodates all the realities of these situations, other than the general principle that a prosecution may only be brought if there is a reasonable prospect of conviction and the prosecution is in the public interest.
I appreciate that Enoch is trying to carve out reasonable exceptions for prosecutions that couldn't have been brought before they were in fact brought. But do we want to litigate this issue for every prosecution older than however many years? Because the historical offences that get prosecuted tend to be serious offences and there is no downside for the accused to put the complainant(s) and/or the state on trial for failing to make the complaint and/or bring the charges earlier.
To specifically address two of Enoch's points:
I really, really, really don't agree with the suggestion that whether or not to bring stale prosecutions should be left to the 'wise' discretion of the state or its agents.
And if the accused is presumed to be innocent, it's hardly fair to them to expect them to answer questions convincingly about something which, if they are innocent, they know nothing about and never happened.
Why should the accused facing historical charges be placed in a better position than any other accused on these two issues?
And if the accused is presumed to be innocent, it's hardly fair to them to expect them to answer questions convincingly about something which, if they are innocent, they know nothing about and never happened.
Why should the accused facing historical charges be placed in a better position than any other accused on these two issues?
The point is not that a person should be in a better position in relation to historical charges, but that elapse of too much time puts them in a worse position.
An innocent person accused of having done something recently is much more likely to be able to bring evidence to rebut the allegations than an innocent person accused of having done something a long time ago, a time which will likely have no particular significance for them since they had done nothing. And that’s just considering the possibility of mistake. Limitation is also protection against a malicious prosecution where a deliberately false accusation is brought about long ago alleged events.
Some (many?) statutes of limitations do have provisions to allow application to the court to bring cases out of time where there are special circumstances justifying the delay, or justifying bringing the case in spite of the delay.
Re. limitations in civil proceedings, obviously they exist, but the law can be very complicated. If you want to make your brain hurt the Ontario Limitations Act is at your disposal. Interestingly section 16 of the Act creates a number of general exceptions including for civil actions relating to sexual assault and a number of other forms of sexual misconduct.
As I said in my last post, sexual abuse especially of minors form a large proportion of the historical cases that make it into the law reports. I think most people would agree it's unrealistic to expect a 12-year-old who is being abused by a family member to promptly report the abuse to police.
@Marsupial under the system of limitation used in civil cases here, time doesn't start running against a minor until he or she reaches majority. The periods also differ for different sorts of claim.
And more generally, it's now generally accepted in law that victims can take a long time to be emotionally and psychologically ready to report sexual assaults. I don't see any principled way of building a limitation period that accommodates all the realities of these situations, other than the general principle that a prosecution may only be brought if there is a reasonable prospect of conviction and the prosecution is in the public interest.
I appreciate that Enoch is trying to carve out reasonable exceptions for prosecutions that couldn't have been brought before they were in fact brought. But do we want to litigate this issue for every prosecution older than however many years?
Yes.
Getting across the message that if you think you've been wronged, then however traumatised you might feel, you shouldn't sit on it together with the discouragement of stale accusations and delay, and the importance of acting on possible evidence while it is fresh are all at least as important principles as any of the others you've mentioned.
Because the historical offences that get prosecuted tend to be serious offences and there is no downside for the accused to put the complainant(s) and/or the state on trial for failing to make the complaint and/or bring the charges earlier.
Yes there is. @BroJames has already pointed out that there is a huge downside.
To specifically address two of Enoch's points:
I really, really, really don't agree with the suggestion that whether or not to bring stale prosecutions should be left to the 'wise' discretion of the state or its agents.
And if the accused is presumed to be innocent, it's hardly fair to them to expect them to answer questions convincingly about something which, if they are innocent, they know nothing about and never happened.
Why should the accused facing historical charges be placed in a better position than any other accused on these two issues?
Hitler would now be 135 years old. Find a more plausible example.
OK a.n.other influencer on social media, 20years old, now inciting racial hatred resulting in arson that kills people somewhere in the UK at the same sort of scale as the Grenfell fire. They go on the run and don’t get located and extradited for 70 years.
What's to be gained by prosecuting a nonagenerian for something that happened seven decades ago?
The deterrent effect of the law is highly dependent on the law being enforced.
Who are you trying to deter? It's obviously not going to have any effect on anyone at the time of the crime (unlike the speedy prosecutions currently being brought against rioters), and a 70 year delay in enforcement is, for virtually everyone that's old enough to be prosecuted in the first place, functionally the same as no enforcement at all.
Hitler would now be 135 years old. Find a more plausible example.
OK a.n.other influencer on social media, 20years old, now inciting racial hatred resulting in arson that kills people somewhere in the UK at the same sort of scale as the Grenfell fire. They go on the run and don’t get located and extradited for 70 years.
What's to be gained by prosecuting a nonagenerian for something that happened seven decades ago?
The deterrent effect of the law is highly dependent on the law being enforced.
Who are you trying to deter? It's obviously not going to have any effect on anyone at the time of the crime (unlike the speedy prosecutions currently being brought against rioters), and a 70 year delay in enforcement is, for virtually everyone that's old enough to be prosecuted in the first place, functionally the same as no enforcement at all.
The message of "you'll never be confident you got away with it" is the message rather than "we'll pick you up in 70 years".
Re. limitations in civil proceedings, obviously they exist, but the law can be very complicated. If you want to make your brain hurt the Ontario Limitations Act is at your disposal. Interestingly section 16 of the Act creates a number of general exceptions including for civil actions relating to sexual assault and a number of other forms of sexual misconduct.
As I said in my last post, sexual abuse especially of minors form a large proportion of the historical cases that make it into the law reports. I think most people would agree it's unrealistic to expect a 12-year-old who is being abused by a family member to promptly report the abuse to police.
@Marsupial under the system of limitation used in civil cases here, time doesn't start running against a minor until he or she reaches majority. The periods also differ for different sorts of claim.
And more generally, it's now generally accepted in law that victims can take a long time to be emotionally and psychologically ready to report sexual assaults. I don't see any principled way of building a limitation period that accommodates all the realities of these situations, other than the general principle that a prosecution may only be brought if there is a reasonable prospect of conviction and the prosecution is in the public interest.
I appreciate that Enoch is trying to carve out reasonable exceptions for prosecutions that couldn't have been brought before they were in fact brought. But do we want to litigate this issue for every prosecution older than however many years?
Yes.
Getting across the message that if you think you've been wronged, then however traumatised you might feel, you shouldn't sit on it together with the discouragement of stale accusations and delay, and the importance of acting on possible evidence while it is fresh are all at least as important principles as any of the others you've mentioned.
The justice system still has a long way to go before it adequately responds to the victims of traumatic crime, but at least it's started to recognise that the psychological damage done by trauma amounts to a lot more than a "feeling".
Comments
No.
They seem to allow people to get away with serious crimes if they can conceal them long enough or there is a delay in evidence getting to the correct people.
And often there is no statute of limitations for more serious crimes, such as murder. In the state where I live, there are no statutes of limitations for any felonies.
It’s always, I think, a call of trying to find the right balance of making sure crimes are prosecuted promptly, both out of governmental interest and to protect rights of the accused, and of not letting people get away with serious crimes.
Your last paragraph is the first time I've ever heard any argument to justify the existence of a statutes of limitations. I may be wrong, but I believe there are no such statues of limitations in English law.* The idea that a crime begins to not matter after a period of time is one that on the face of it seems wrong both morally and from a public policy point of view. (I think* in England and Wales that the Crown Prosecution Service has discretion on this rather than any specific legal limitations). That does not mean it is, of course, there may well be good arguments for them. Although, I have yet to hear anyone argue convincingly for them. Having followed the various judicial adventures of Mr Trump, it is very clear that they can be abused if you have sufficient resources.
In terms of the specifics. It is noteworthy that SCOTUS has gutted bribery legislation in recent years but if the alleged facts are correct then even this Court would admit this counts as a bribe. Moreover, there is reason to think there was significant corruption within the Department of Justice that prevented this matter being taken further. However, I strongly suspect that it is all a legal dead-end and this cannot be prosecuted. That would not (and should not) prevent the House of Representatives from investigating it though!
AFZ
*I am definitely not a lawyer... happy to be corrected.
Here's what I found.
The UK has no statute of limitations for indictable (basically major) crimes.
I think it makes sense to have limitations on civil actions and not criminal ones. YMMV, of course.
For example, the Indian government recently made moves to prosecute Arundhati Roy for remarks she made over fifteen years ago about the India-Pakistan conflict over Kashmir.
Well, they shouldn't be going after her for those remarks at all, but the problem is compounded of the police can decide not to prosecute and then decide to prosecute after all.
The reality is that the longer after the act, the harder it can be for the prosecution to gather sufficient evidence for proof beyond a reasonable doubt, and the harder it can be for a defendant to mount an adequate defense.
Criminal statutes of limitation have nothing to do with crimes ceasing to matter after a defined period of time, and the fact that a statute of limitations has run in no way means a crime doesn’t matter. It means the likelihood of a trial that is fair both to the public and to the defendant has been compromised to such an extent that the trial and conviction themselves could be unjust.
And again, I note that criminal statutes of limitations, in those jurisdictions that have them, often don’t apply to more serious crimes. There, a decision has been made that the severity of the crime may outbalance the risk of compromise to a trial fair to all parties.
Does the Holocaust count as a "serious crime"? Views differ!
I would agree.
A jury’s role is to (attempt to) determine what the facts are, to determine what happened, based on the competent evidence actually presented. Part of that can include assessing the credibility of witness testimony years or decades later. But it’s not a jury’s role to try to guess what no-longer-available evidence might have been, or what effect it might have had on their verdict.
Nope. You’d also need to prove, through competent evidence—witnesses or admissible documents—and not just through what we all know from the history books, that he actually committed all the elements of the crimes with which he was charged.
People are quite bad at judging the quality of the evidence. Witnesses, for example, are prone to misremembering details, and even synthesizing entirely false memories, but thinking that their memories are accurate.
DNA evidence might indeed turn up after a considerable passage of time. Generally this would be a sample taken at the time matching to a new sample that has been submitted to the database - either the criminal themselves or a relative having been subsequently arrested and samples taken.
CCTV? I'd be rather suspicious of CCTV evidence that didn't exist at the time, but surfaced a decade or two later. Chain of custody issues with regard to such evidence look challenging to say the least.
I think the bottom line is a recognition that not every offence is so serious that it needs to be prosecuted long after the fact… if the accused has stayed out trouble in the meantime, there’s a diminished public interest in proceeding on a less serious offence, and if they haven’t stayed out of trouble chances are decent they’ve gotten themselves charged with something else in the meantime.
Anecdotally I find that many witnesses’ memories fade alarmingly quickly. Depends on how memorable the events were, of course, and also on whether they took contemporaneous notes. Given the burden of proof I think poor memory generally works more often against the prosecution than the defence. Even if the witness is found to be credible doubts about reliability are often fatal to proof beyond reasonable doubt.
If you put someone in his/her 90s on trial for crimes from 80 years ago, there would be very little to work with: no DNA evidence from that period, grainy black and white photographs, maybe some handwriting, and testimony from similarly old witnesses. How good do you expect your memory to be in your 90s (if you last so long)?
It might be better to debate charging someone with a war crime from the Vietnam war, a mere 55 years ago.
There is literally colour video from world war 2.
Obviously, its orders of magnitude more difficult over time to build a case. But I don’t think it is impossible and I think it is more sensible to rule on the quality of the evidence available at the time of the prosecuting decision than an arbitrary deadline.
There’s also the issue that you are basing your statue of limitation on evidentiary technologies available now. We don’t know what we will develop in the future. We see cold cases successfully prosecuted now in the UK that are decades old due to dna advances that weren’t really imagined when the evidence was originally stored.
OK a.n.other influencer on social media, 20years old, now inciting racial hatred resulting in arson that kills people somewhere in the UK at the same sort of scale as the Grenfell fire. They go on the run and don’t get located and extradited for 70 years.
If we are talking about bribery or falsification of business records or fraud - to pick three examples - these are crimes which tend to create a significant paper trail.
Hypothetically, if one is prosecuting fraud ten or even twenty years down the line, it may be very easy to demonstrate the facts of the case from the records that exist. Depending on the statute, there may be a need to demonstrate intent but that is an inference that juries are used to drawing and the quality or otherwise of the testimony of eye witnesses is rarely a factor.
Which brings me back to my conclusion. I think prosecuting authorities should have discretion on this: i.e. weighing up the likelihood of conviction with the quality of evidence they now have before deciding to proceed. A legally defined cut-off is not needed. Some rules around how prosecuting authorities handle this and ensuring they inform the accused when a decision is made not to proceed is important but I think more just that a statue of limitations.
AFZ
Spot on. A real problem is if the person, said to be the victim of the supposed crime, has been dwelling on it for years. How reliable could that evidence be? Probably largely unreliable, and that poses problems for both the prosecution and the accused.
Many of the critiques of statutes of limitations so far made seem to be based on the assumed guilt of the defendant.
Here in the UK, the Post Office Horizon scandal shows how hard it can be for an individual to mount a defence even in relation to recent events. The passage of time for a potentially unsuspecting individual can only make things worse.
Indeed but as I said above, I think it is not a convincing argument for a strict cut off so much as sensible discretion on the part of prosecutors and the courts. Especially as the kind of crimes that don't have a Statue of Limitations are often the ones most likely to depend on witness testimony whilst many of the ones that do are very much 'documents cases.'
Prosecutors already abuse their discretion all too frequently. It seems reasonable to give the state a time limit on deciding whether or not to bring a prosecution, especially for minor offenses. At a certain point deciding to devote resources to a twenty year old jaywalking case is a misuse of authority.
Many of the really old cases I see in the criminal appeal reports are appeals from conviction for historical sex assaults committed by adults against vulnerable minors. I’m not sure that assumption is valid in such cases.
There’s a lot that can be said about issues with prosecuting historical offices, but as a starting point I think it’s good to remember that we don’t even get to the issue of the accused’s being able to defend themselves unless the prosecution can establish a case that would otherwise meet the standard of proof beyond reasonable doubt. And passage of time can present challenges on this point even with the ordinary delay from charge to trial never mind in cases where charges are laid long after the offences are alleged to have happened. The prosecution has to prove its case beyond reasonable doubt; the accused doesn’t have to prove anything. The burden and standard of proof doesn’t really change with the passage of time but the prosecution’s ability to meet that burden and what will reasonably be expected of the defence to undermine that case can be expected to change dramatically.
@Crœsos there are differences in how prosecutional discretion works in the UK compared to the US but I take the point. However, I also feel no one should be prosecuted for Jay Walking* anyway but bribery - to pick an offence at random - is a very different matter...
AFZ
*I think I may have committed this offence in San Francisco over a decade ago. I crossed the road as I have done all my life, forgetting that the law is different. I am not sure on California law but fortunately, I had no reason to find out as I was neither apprehended nor ran over...
What's to be gained by prosecuting a nonagenerian for something that happened seven decades ago?
And the SFPD has been looking for you ever since that incident.
Where's the Killing Me Emoticon when I need it?
I think the victims (or their relatives) might well feel something had been gained.
The deterrent effect of the law is highly dependent on the law being enforced.
The first thing I'd say is that limitation is essential to the working of civil law, i.e. law as between individuals. One of its main, and thoroughly laudable aims is to ensure that people can't sit on their possible claims for years and drag old claims out of the woodwork. If you've got a claim, you are required to bring it promptly. If you don't, you lose the right to do so. I'd be surprised if anyone disagrees with that.
The question I'm assuming is being discussed here is how far that should apply to criminal proceedings. Practice on this varies between jurisdictions. Your own view might also be affected by what you think the criminal law is supposed to do. To what extent is it there to get people to behave themselves, to deliver justice for individuals, or even to express some abstract sense of justice that is the responsibility of the state?
I agree with @Nick Tamen's summary, I think that's well put. I was really quite surprised by @quetzalcoatl's,
As people have already pointed out, even in jurisdictions like England and Wales which don't have any general limitation for criminal proceedings, you are likely to find that there will be some more trivial crimes which lapse or where the prosecution has to tell you whether you are going to be prosecuted within a period of time.
Even for serious criminal cases, though, I think England and Wales should have some sort of limitation. Justice is badly served by its absence. This has been particularly so in recent years when there has been quite a plethora of cases which the police have felt obliged to take up, investigate and in due course take to court, where the first they've heard of the allegation is a complaint by somebody about something which they claim happened 30, 40 or even 50 years ago. However serious the wrong they're complaining about, after that length of time, the evidence is pretty well bound to be duff. Even if it isn't, if they've sat on their hands for so long, there's a good argument that however hard that might be, they should have to put up with it. And if the accused is presumed to be innocent, it's hardly fair to them to expect them to answer questions convincingly about something which, if they are innocent, they know nothing about and never happened.
If a person thinks they have suffered a crime, they should assume they have to make their complaint at the time.
The three exceptions I'd make to this, and I think they're probably the only ones, are,
- First (and this isn't an exception), if the victim made their complaint promptly but the criminal disappears, bolts abroad or the crime languishes unsolved for years, time should not run in the criminal's favour.
- Second, I don't think time should start to run for an undiscovered crime until it's discovered, as with the story recently on R4 about the Danish antique dealer who discovered a trail of evidence that appears to demonstrate a series of thefts over time from the British Museum by an employee. and
- Third, there should be no limitation for murder. The victim is dead and so obviously can't be put under an obligation to make their complaint promptly.
So, as a practical example, if England and Wales were to follow my suggestion, and if Lord Lucan should be alive and turn up, he wouldn't be able to claim limitations either under 1 or 3.
I really, really, really don't agree with the suggestion that whether or not to bring stale prosecutions should be left to the 'wise' discretion of the state or its agents.
As I said in my last post, sexual abuse especially of minors form a large proportion of the historical cases that make it into the law reports. I think most people would agree it's unrealistic to expect a 12-year-old who is being abused by a family member to promptly report the abuse to police. And more generally, it's now generally accepted in law that victims can take a long time to be emotionally and psychologically ready to report sexual assaults. I don't see any principled way of building a limitation period that accommodates all the realities of these situations, other than the general principle that a prosecution may only be brought if there is a reasonable prospect of conviction and the prosecution is in the public interest.
I appreciate that Enoch is trying to carve out reasonable exceptions for prosecutions that couldn't have been brought before they were in fact brought. But do we want to litigate this issue for every prosecution older than however many years? Because the historical offences that get prosecuted tend to be serious offences and there is no downside for the accused to put the complainant(s) and/or the state on trial for failing to make the complaint and/or bring the charges earlier.
To specifically address two of Enoch's points:
Why should the accused facing historical charges be placed in a better position than any other accused on these two issues?
The point is not that a person should be in a better position in relation to historical charges, but that elapse of too much time puts them in a worse position.
An innocent person accused of having done something recently is much more likely to be able to bring evidence to rebut the allegations than an innocent person accused of having done something a long time ago, a time which will likely have no particular significance for them since they had done nothing. And that’s just considering the possibility of mistake. Limitation is also protection against a malicious prosecution where a deliberately false accusation is brought about long ago alleged events.
Some (many?) statutes of limitations do have provisions to allow application to the court to bring cases out of time where there are special circumstances justifying the delay, or justifying bringing the case in spite of the delay.
Getting across the message that if you think you've been wronged, then however traumatised you might feel, you shouldn't sit on it together with the discouragement of stale accusations and delay, and the importance of acting on possible evidence while it is fresh are all at least as important principles as any of the others you've mentioned. Yes there is. @BroJames has already pointed out that there is a huge downside. I'd refer you again to what @BroJames has said.
Who are you trying to deter? It's obviously not going to have any effect on anyone at the time of the crime (unlike the speedy prosecutions currently being brought against rioters), and a 70 year delay in enforcement is, for virtually everyone that's old enough to be prosecuted in the first place, functionally the same as no enforcement at all.
The message of "you'll never be confident you got away with it" is the message rather than "we'll pick you up in 70 years".